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The Supreme Court ruled on Wednesday that a beach in Newhaven could not be registered as a town or village green (TVG).

Opponents to development have long been using the TVG route to thwart unwelcome works, as once land is registered as a TVG it is effectively sterilised for redevelopment. In order to register land as a TVG, members of the public must be able to demonstrate that a significant number of local inhabitants have used the area “as of right” for lawful sports and pastimes for at least 20 years. However, over recent years, case law interpreting this test has tended to lessen the burden on applicants, making it easier for land to be registered as a TVG. This recent decision takes a welcome step in the other direction.

The application related to a beach which was part of the operational port (and had indeed only been formed as a result of the construction of a breakwater). There were many controls on the operation of the port, including various statutory provisions and byelaws regulating its use by members of the public.

Although the principle that a beach could be registered as a TVG was not argued at Supreme Court level, the operators of the port argued that the relevant byelaws granted an implied licence for members of the public to use the beach, provided they did so in accordance with certain conditions. This position was accepted and it was further held that the byelaws did not need to be brought to the public’s attention for an implied licence to exist.

As it was held that there was an implied licence for use by members of the public, this use became “by right” and not “as of right”, and the beach was not registered as a TVG.

According to the Court, where a landowner can show that land used by members of the public is regulated by statutory provisions or byelaws, even if members of the public are not aware of them, there will be an implied licence in place. This means that any such use is not “as of right” and will ultimately defeat any application to register the land as a TVG. Therefore this decision will be welcomed by the development industry.

Case: R (on the application of Newhaven Port & Properties Limited) (Appellant) v East Sussex County Council and another (Respondents) [2015] UKSC 7

Compare jurisdictions: Arbitration

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